Florida A & M University Law Review Volume 7 Number 2 Green Justice for All: International and Article 6 Comparative Dimensions of Environmental Justice Spring 2012 Environmental Justice with Chinese Characteristics: Recent Developments in Using Environmental Public Interest Litigation to Strengthen Access to Environmental Justice Jingjing Liu Follow this and additional works at: http://commons.law.famu.edu/famulawreview Part of the Environmental Law Commons, and the International Law Commons Recommended Citation Jingjing Liu, Environmental Justice with Chinese Characteristics: Recent Developments in Using Environmental Public Interest Litigation to Strengthen Access to Environmental Justice, 7 Fla. A&M U. L. Rev. (2015). Available at: http://commons.law.famu.edu/famulawreview/vol7/iss2/6 This Article is brought to you for free and open access by Scholarly Commons @ FAMU Law. It has been accepted for inclusion in Florida A & M University Law Review by an authorized editor of Scholarly Commons @ FAMU Law. For more information, please contact [email protected]. ENVIRONMENTAL JUSTICE WITH CHINESE CHARACTERISTICS: RECENT DEVELOPMENTS IN USING ENVIRONMENTAL PUBLIC INTEREST LITIGATION TO STRENGTHEN ACCESS To ENVIRONMENTAL JUSTICE Jingfing Liu* TABLE OF CONTENTS I. INTRODUCTION ............................................ 230 II. ENVIRONMENTAL JUSTICE IN THE CHINESE CONTEXT ....... .231 A. Environmental DisparitiesBetween Eastern and Western Regions ................................ 234 B. Environmental DisparitiesBetween Urban and Rural Areas .......................................... 235 C. Migrant Workers as a Vulnerable Group to Environmental Risks ............................. 237 III. EMPLOYING ENVIRONMENTAL PUBLIC INTEREST LITIGATION TO IMPROVE ACCESS To ENVIRONMENTAL JUSTICE ......... .241 IV. ANALYSIS OF THREE RECENT ENVIRONMENTAL PUBLIC INTEREST CASES .......................................... 244 A. All-China Environment Federation& Guiyang Public Environmental Education Center v. Dingpa Paper Mill of Wudang District, Guiyang City (2010)......... 244 B. Kunming Municipal EPB v. Kunming Sannong Agriculture and Animal Husbandry Company and Kunming Yangpu United Animal Husbandry Company (2010) ................................ 249 C. All-China Environment Federation v. Xiuwen County Environmental Protection Bureau of Guizhou Province (2012) ................................................ 254 V . CONCLUSION .............................................. 258 * Jingjing Liu is the Associate Director of the U.S.-China Partnership for Environ- mental Law at Vermont Law School. She also teaches a Chinese law seminar and a comparative environmental law research seminar as an assistant law professor at the law school. The preparation of this paper was supported by the United States Agency for Inter- national Development (USAID) and Vermont Law School. The views of the author expressed in this article do not necessarily reflect the views of the USAID or the United States. 229 230 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:2:229 I. INTRODUCTION China's unprecedented economic growth and rapid urbanization in the past three decades has exerted a heavy toll on the country's envi- ronment. According to the 2010 Official Report on the Land and Resources released in October 2011, in 182 Chinese cities that monitor ground water quality, 40.44% of the ground water was graded four and 16.7% was graded five.' According to the National Standard for Ground Water Quality, Grade Four means the water should primarily be used for agricultural and industrial purposes, and can be used as drinking water only after proper treatment, while Grade Five means the water is not suitable for drinking.2 This is devastating news to the over 400 cities which rely on ground water as their drinking water source out of China's 655 cities.3 In particular, cities in northern China rely heavily upon ground water. Currently, 65% of the water used daily by the people, 50% of the water for industrial use, and 33% of the water used for agricultural irrigation of cities in northern China comes primarily from ground water.4 In a study released in February 2012, researchers at the Massachusetts Institute of Technology (MIT) Joint Program on the Science and Policy of Global Change said al- though China has made substantial progress in reducing air pollution, the economic impact of air pollution has jumped from $22 billion in 1975 to $112 billion in 2005.5 Acknowledging "the damages are even greater than previously thought," the MIT researchers concluded that China has already become the world's largest emitter of mercury, car- bon dioxide and other pollutants, and only recently started to monitor ozone.6 1. Libin Wang, Official Report on the Land Resources: The Ground Water Quality of Over Half Chinese Cities Were Rated IV and V, NEWS.COM, October 19, 2011, available at http://news.xinhuanet.com/politics/2011-10/19/c_111108310.htm. 2. Zhong Hua Ren Min Gong He Guo Guo Jian Biao Zhun Di Xia Shui Zhi Liang Biao Zhun GB/T 14848-93 ( T7J';G:M GB/T 14848-93) [Quality Standard for Ground Water of the National Standards of the People's Republic of China, GB/T 14848-93(approved by the General Administration of Quality Supervision, Inspection and Quarantine, 1993, effective 1994) (China), available at http://kjs.mep.gov.cn/pvobj- cache/pvobjidB425DF8639DFD8C9839FAFC2297305244CDBO200/filename/WO2006102 7512167894817.pdf. 3. Ground Sinking Occurred In Over 50 Cities Across China, PEOPLE.COM.CN, November 17, 2011, available at http://www.people.com.cn/h/2011/1117/c25408-38512842 37.html. 4. Id. 5. Wendy Koch, MIT: China's Pollution Costs $112B In Annual Health Care, USA TODAY (February 14, 2012) http://content.usatoday.com/communities/greenhouse/post/2012/ 02/chinas-growth-worsens-air-pollution-hikes-health-costs/1#.TzuclSNJIU. 6. Id. 2012 ENVIRONMENTAL JUSTICE 231 Set against the backdrop of China's daunting environmental challenges, this article will first discuss how the environmental justice issue manifests itself on Chinese soil and how its evolvement differs from the American experience. This discussion will be followed by an analysis on how environmental public interest litigation, inspired by citizen suits in the U.S., has been fermenting in China and advocated by environmentalists as a new approach to broaden and strengthen ac- cess to environmental justice. The article will then move on to analyze three high-profile environmental public interest cases recently brought by a Chinese NGO and a local environmental protection agency, re- spectively, at two specialized environmental courts, and discuss the important innovations and limitations of these cases. The article will conclude with some further thoughts on the direction of China's envi- ronmental public interest litigation experiment and how it can be effectively employed to strengthen environmental governance and en- sure environmental justice for all. II. ENVIRONMENTAL JUSTICE IN THE CHINESE CONTEXT The concept of environmental justice in China has its own dis- tinctive meanings, and is generally understood very differently from its original racial and income-based meanings defined by the environmen- tal justice history of the United States.7 Although China has 55 ethnic minority groups, the Chinese government has adopted a strict racial equality policy since its foundation in 1949, aiming to create a harmo- nious relationship among different ethnic groups and to minimize any potential conflicts.8 Unlike in the United States, where Hispanics often engage in labor-intensive industries and therefore, are likely to suffer the negative consequences of pollution, minority groups in China are not discriminated when pursuing employment opportunities as a result of the "racial neutral" national policy.9 Polluting industries and clean energy projects can both be sited in minority regions because of a 7. For example, Naikang Tsao described a striking feature of the American landscape as the prevalence of toxic waste dumps in low-income communities and communities of racial minorities. See Naikang Tsao, Ameliorating Environmental Racism: A Citizens' Guide to Combating the DiscriminatorySiting of Toxic Waste Dumps, 67 N.Y.U. L. REV. 366, 366 (1992). The author discussed the environmental justice issue in the Chinese context also in a chapter titled "The Impacts of Climate Change on Indigenous Populations in China and Legal Remedies," co-authored with Wenxuan Yu and Pong Dong, for the book CLIMATE CHANGE AND INDIGENOUS PEOPLES: THE SEARCH FOR LEGAL REMEDIES, edited by Randall S. Abate and Elizabeth Kronk, Edward Elgar Publishing, forthcoming March 2013. 8. Ruixue Quan, Establishing China's Environmental Justice Study Models, 14 GEO. INT'L ENVTL. L. REV. 461, 467 (2002). 9. Id. at 468. 232 FLORIDA A & M UNIV. LAW REVIEW Vol. 7:2:229 particular region's natural conditions, rather than racial considerations. 10 In mixed income communities, it is possible for wealth to play a role in affecting plaintiffs' chance of escaping pollution with richer re- sidents moving away and leaving their poorer neighbors to bring lawsuits on their own." When it comes to the intricate relationship between income level and environmental justice, there is no systematic evidence suggesting, from a microcosmic view, that low-income com- munities receive more environmental burdens and less environmental benefits because of their income status. 12 The dense population and existing formatted urban structure have effectively inhibited the trend of wealthier people